Summary: Mrs B complained in respect of her daughter, C, that the Council failed to complete an Education, Health and Care needs assessment within the 20-week statutory time frame or ensure suitable education was provided during the period C was not attending school. We found fault in the actions of the Council. The Council has agreed to apologise to Mrs B and C, make a symbolic payment and improve its procedures for the future.

The complaint

1. Mrs B complained that Newcastle upon Tyne City Council (the Council), in respect of her daughter C, failed to:
• complete the Education, Health and Care (EHC) needs assessment within the 20 week statutory time frame;
• ensure suitable alternative education was provided during the period C was not able to attend school; or
• offer an adequate remedy for the fault during the complaints process.
2. Mrs B said this caused C to miss out on a significant amount of education and Mrs B experienced significant distress.

Back to top

The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
5. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(1), as amended)

Back to top

What I have and have not investigated

8. I have investigated Mrs B’s complaint from 22 September 2024 (12 months before she complained to us) until 8 October 2025 when we decided to investigate the complaint. Mrs B did not lodge an appeal with the Tribunal and although her right of appeal arose on 21 July 2025, the named placement was not due to start until January 2026, so we can still consider the question of alternative provision until she complained to us.

Back to top

How I considered this complaint

9. I considered evidence provided by Mrs B and C as well as relevant law, policy and guidance.
10. Mrs B and C had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
11. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I found

Special educational needs

12. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the Tribunal or the council can do this. 

Timescales and process for EHC assessment 

13. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says the following: 

• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks. 
• The process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable. 
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• If the council goes on to issue an EHC Plan, the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply);  

Appeal rights and our jurisdiction

14. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
15. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
16. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person.
17. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.

Section 19 duty

18. Section 19 of the Education Act 1996 says that the council must arrange suitable alternative educational provision when it finds that a child is unable to attend school because of a permanent exclusion, an illness, or for any other reason which make the school inaccessible to the child. The alternative educational provision must be suitable to the child’s age, ability and aptitude, and any special educational needs they have.

Establishing a section 19 duty

19. If a council discovers a child is absent from school for an extended period, it should consider the reasons for this, and take account of evidence from relevant parties (such as the child’s school, parents, and medical professionals). It must then decide whether it has a duty to make alternative educational provision.
20. If a council wants to see medical or other evidence, it should ask for it at the earliest opportunity. The council should account for any challenges a parent might have in obtaining evidence, and review its position based on any new evidence it receives.
21. Councils should consider any attempts the school is making to support the child. This might involve sending work home for the child to complete, arranging disability related support, placing the child on a reduced timetable, or providing online education as a short-term measure. If there is a clear, effective, and time-bound plan for reintegration then there may be no immediate role for the council in providing alternative education.

What happened

22. Mrs B’s daughter, C, has health conditions and was struggling to attend school. From March to July 2024 she was dual-registered at her current mainstream school (School Z) along with an alternative placement (School Y) and her attendance was good. On 16 April 2024 Mrs B requested an EHC needs assessment. On 2 October the Council agreed to issue an EHC Plan and issued a draft EHC Plan on 4 December. Mrs B was happy with the content of the Plan.
23. Between September and December 2024 C had been on a reduced timetable for 10 of the preceding 15 weeks. She stopped attending School Y entirely from 7 December.
24. On 7 January 2025 School Y said C had struggled to attend following both the summer and Christmas holidays. It asked if tuition could be provided for C at the local library rather than at home. The Council caseworker (Officer X) said they would follow this up but there is no record of a response.
25. Officer X discussed possible placements with Mrs B over the next few months. Mrs B confirmed that School Y was not suitable and said she had been considering independent specialist placements. Officer X agreed to consult with these. Mrs B also asked for information about home schooling as she was worried about C missing so much education.
26. In April 2025 School Y said it could not meet C’s needs because she was not attending the school. It detailed all the strategies it had tried to encourage re-engagement.
27. In early May 2025 Mrs B chased up Officer X about the EHC Plan and the named placement. Officer X responded in mid-May and again in early June saying that she was consulting with other placements.
28. On 24 June the Council said to Mrs B that it had decided to name School Y in section I of the EHC Plan from January 2026 with an alternative provision in place for the autumn term to encourage C‘s re-engagement. It said it was satisfied that School could meet C’s needs despite the attendance issues and that it did not consider a place at an independent specialist school was the best use of its resources. School Y had already queried this with the Council on 12 June saying that even if it could meet C’s needs on paper it could not do so if C did not attend and none of its many strategies employed since September had worked.
29. On 21 July the Council issued the final EHC Plan naming School Y from January 2026.

Formal complaint

30. Mrs B made a formal complaint to the Council on 13 July 2025. She said no final plan had been issued and no suitable alternative provision put in place. She said although the Council was saying C had to attend School Y it was neither possible nor suitable as C’s attendance since September 2024 had only been 21%.
31. On 6 August the Council responded to her complaint at step two of its complaints procedure. It acknowledged the delay in completing the assessment process, noted it was currently at 65 weeks, and this was partly due to a delay of 20 weeks in receiving professional advice and then 31 weeks to consult with multiple schools and settings. It upheld the complaint and apologised. It also explained again its reasons for naming School Y with a term of alternative provision. It said it had now secured this to start in September 2025.
32. In terms of alternative provision, it said that School Z had sourced alternative provision at School Y from 12 March 2024 until 23 June 2025. It noted that C had not attended but said that parents had a legal duty to ensure their child attended school and schools had a responsibility to make reasonable adjustments and work with families to support attendance. It says it expected that both Mrs B and Schools Y and Z to have collaborated to find a way forward. It did not uphold this part of the complaint. It also said the Panel had made the decision to name School Y after reviewing all the evidence and Mrs B had the right to appeal to the Tribunal if she disagreed.
33. Mrs B escalated her complaint, and the Council sent a step three response on 17 September. It acknowledged the EHC assessment process had taken 65 weeks. It said it since then recruited five additional staff, along with reviewing and streamlining its processes. It offered Mrs B £100 for the impact on the child’s wellbeing and education. It said the plan would be reviewed once C started at the new provision in October 2025. In terms of alternative provision, it did not uphold this complaint and said it was a complaint about Schools Z and Y. It recognised from 24 June to 1 October 2025 it had failed to make any alternative provision and offered Mrs B £250.
34. C’s provision did not start until 16 October 2025. The Council said it put in place some additional tuition session in November 2025, but C attended 12 sessions and then declined to attend any more.

Findings

EHC assessment

35. The Council delayed excessively in completing the EHC assessment process taking 65 weeks to issue a final plan, exceeding the statutory timeframe by 45 weeks. I understand that some elements which contributed to the delay were outside the Council ‘s control but it was significant fault which meant C missed out on support for her special educational needs and Mrs B was denied the opportunity to challenge the choice of placement. It also caused Mrs B uncertainty and frustration.
36. The Council should have issued a final plan by 1 September 2024; it did not do so until 21 July 2025. This period coincided with a marked deterioration in C’s attendance at School Y and exacerbated Mrs B’s uncertainty about whether more appropriate support could have helped C.
37. While I welcome the Council’s recognition that this was fault causing injustice, I do not consider £100 is sufficient or in line with our Guidance on Remedies.

Section 19 duty

38. From September to 7 December 2024 School Y was implementing strategies including a reduced timetable to improve C’s attendance. The Council was not aware at this point of the declining attendance. I do not find fault during this period.
39. However, from December 2024 C had stopped attending school at all. The Council was made aware of these attendance difficulties in January 2025 but there is no evidence it considered its section 19 duty was triggered and whether it should provide alternative education. This was despite School Y making a direct request for tuition at a local library. Despite regular contact with Mrs B from this point onwards, who made clear on numerous occasions that C was missing education, the Council did not consider its section 19 duty or whether the education on offer from School Y was suitable and accessible to C. This was fault which caused uncertainty to Mrs B as to whether C could have benefitted from an alternative approach.
40. The Council accepts that from 24 June 2025 it failed to put in place any alternative provision but maintains that prior to that it was the responsibility of School Y. I disagree. The section 19 duty lies with the Council, not the School. While the Council can delegate that responsibility to another organisation to deliver it still remains responsible for ensuring the provision is suitable and accessible. The Council was aware in January 2025 that C was not attending school and that alternative tuition had been requested but there is no evidence the Council considered the suitability of that provision given that C was not attending at all. This was fault which caused uncertainty to Mrs B.
41. I welcome the Council’s offer of £250 for the 2.5 months of non-provision it has accepted (from 24 June to 16 October 2025, excluding the summer holidays), but again I do not consider it is sufficient or in line with our Guidance on Remedies

Action

42. In recognition of the injustice caused to C and Mrs B, I recommend the Council, within one month of the date of my final decision:
• Apologises to C and Mrs B;
• Makes a symbolic payment of £2100 in total:
1. £1200 instead of £100 for the lack of SEN support from September to July 2024. (Approximately three terms: One term with some support at School Y @ £300 but two terms with no support @ £450 a term); and,
2. £900 instead of £250 for the lack of consideration of the section 19 duty from January to June 2025 (five months) creating uncertainty (£400) and then a failure to provide alternative provision for 2.5 months (£500).
43. I also recommend within three months that the Council:

• reviews and amends its policy on alternative provision to ensure it accurately reflects its legal duty and includes a clear decision-making process to follow once it is aware a child is out of school for an extended period; and
• provides training and/or guidance to relevant staff in the education department on the Council’s section 19 duty to ensure they understand and implement it correctly.

44. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

45. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Back to top

Investigator's decision on behalf of the Ombudsman